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Monthly Archives: September 2013

Many times I find myself preparing witnesses for testifying at trial and realize anew just how unusual and fearful an environment the courthouse can be for honest men and women. Although popular culture tells us that an honest person has nothing to worry about and therefore has no reason to be nervous, this is not the entire story. I have observed many honest men and women trembling with fear when on the stand.

People, especially honest ones, can find plenty to worry about if they are called to testify. Let’s list a few: fear that one might make a costly mistake; fear that one might be tricked; fear that one’s voice, memory, nerve will fail; fear that testimony might let a friend, family member, loved one down; fear that the testimony might prove embarrassing, have adverse social consequences, or might not represent the witness in the best light; fear of being criticized or demeaned; fear that one’s testimony will hurt one’s case; conflicts between the obligation to tell the truth and other obligations or loyalties; and, of course, fear of public speaking.

Let’s consider fear of public speaking, the last in the list above. Comedian Jerry Seinfeld reportedly quipped that the fear of public speaking ranked higher than the fear of death, concluding: “This means to the average person, if you have to go to a funeral, you’re better off in the casket than doing the eulogy.” Public speaking , according to a number of surveys, ranks high among phobias. I cannot vouch for the methodology of the surveys, but according to a study cited in David Wallechinsky, Irving Wallace and Amy Wallace’s book, “The Book of Lists,” the fear of public speaking ranks number one in the minds of the majority of people, based upon a 1993 survey of 3000 people conducted by the polling firm Bruskin-Golding. Their ranking:

Dr. Michael Telch of the Laboratory for the Study of Anxiety Disorders (LSAD) in the Department of Psychology at The University of Texas at Austin is quoted as having said: ““The biggest fear is public speaking, with 15 percent of American experiencing a dramatic fear of it …. People have had to turn down jobs, and certainly students have dropped classes because of it.” See Newswire Today http://www.newswiretoday.com/news/17334/]

According to Mayo Clinic psychiatrist, Daniel K. Hall-Flavin, M.D., “Fear of public speaking is a common phobia. It can range from slight nervousness to paralyzing fear and panic. Many people with a fear of public speaking avoid public speaking situations altogether, or they suffer through them with shaking hands and a quavering voice. But with preparation and persistence, you can overcome your fear.” Preparation appears again and again as the solution. See, also: Discovery: Fit & Health [http://health.howstuffworks.com/mental-health/anxiety/countering-all-the-anxieties-that-plague-us-from-fear-of-flying-to-public-speaking3.htm]

It is an elementary principle of human psychology that high emotion clouds intellectual function. High anxiety can result in all manner of problems: panicky misstatements, rushed testimony, inability to give thoughtful, cogent responses, poor memory and impaired recollection, going “blank.” Moreover, many clients and witnesses are anxious about being anxious, fearful of the foregoing litany of problems.

Many clients, especially those familiar with public speaking or courtroom procedures, may feel that no particular training is required and that they will have a natural “aptitude” for testimony. I can attest to the fact that, even if this were true, it would not be sufficient to achieve the best possible courtroom testimony. Put another way, as I have jokingly said to clients: “Going to a hanging and being hanged are entirely different experiences.”

Many lawyers, for instance, having seen testimony, assume that they, themselves, would make fine witnesses. Based on my experience, this is not the case. Like many other things in life, being a witness is a specific skill that is often not developed as an unintended consequence of other life activities. It must be practiced. Effective practice involves: attention, exposure, feedback, and repetition.

Attention requires the active participation, without competing distractions, of the witness. Adequate time, focus, and openness to correction. An over-confident witness can be incorrigible since he or she will simply refuse to commit the attention required. A witness with anxiety, willing to commit to preparation, can end up being a superb, credible, effective witness.

Exposurerequires that the attorney, to the extent possible, carefully expose the witness to elements of the testimonial experience: substance, procedure, and environment. This may mean having the witness dress as they would for trial, act as though they are giving testimony, prepare before witnesses, and even visit the scene of the testimony, whether the conference room (for a deposition) or the courthouse, all the while being asked about the substance of probable questioning, and being familiar with procedures such as objections, instructions from the court, the location of the court reporter, examination, cross-examination and questions from jurors. A witness for a videotaped deposition should be prepared for videotape – to be seen and heard.

Feedback means that honest, credible, effective testimony should be reinforced and that testimony appearing to be less than honest, credible, and effective, must be discouraged. A constructive feedback loop, encouraged by positive reinforcement, must be established to maximize improvement. Praise and appropriate constructive criticism, combined, for instance, with periodic review of videotaped testimony can be a powerful tool for teaching and learning.

Repetition, as is obvious, involves repeated exposures to increase comfort and familiarity with the testimonial experience combined with repeated feedback until a consistent level of testimonial excellence can be approached, if not attained. In the end, a trial consists largely of oral testimony and exhibits. It would be foolish to allow the testimonial aspect of a case to go unattended. Yet, in the press of motion practice and case preparation, all too often attorneys fail to dedicate adequate time on witness preparation.

The plaintiff, for instance, is a star witness in his or her own case. Being honest is essential – but it is not sufficient in and of itself. The witness must not only be honest, but must also appear honest. Think of the courtroom as a stage. Actors wear stage makeup. Why? Because the bright lights of the stage, tend to wash out color; too little powder and skin oils will break through quickly resulting in unwanted shine. In other words, under the heat and light of the stage, makeup is needed just to appear normal. Similarly, in the courtroom, preparation is needed just to appear normal. The trial experience is unlike any other. Adequate preparation should be the object of careful, focused attention, not an afterthought.